People v. Antoine , 415 N.Y.S.2d 77 ( 1979 )

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered June 6, 1977, convicting him of two counts of robbery in the first degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. The defendant was convicted of two counts of robbery in the first degree, it being found that in the early morning hours of September 15, 1976 he and four other men went to an Amoco gas station in Brooklyn in a car driven by the defendant and robbed the attendant at gunpoint. Four hours later they committed a robbery at a second gas station in Queens. After” an extensive chase, the police captured the defendant and his passengers. Defendant made no statement at the time of his arrest. At trial, defendant raised the affirmative defense of duress (see Penal Law, § 40.00), claiming that he was a gypsy cab driver who had been hailed and then forced at gunpoint to drive his car, with the robbers in it, during the commission of the robberies and the ensuing flight. On cross-examination, over defense counsel’s objection, the prosecutor asked the defendant whether he had ever come forward and informed the police, the District Attorney, or any public official, that he had been forced at gunpoint to participate in the robbery. Defendant answered that he had not, but he did inform his attorney that he had acted under duress. The prosecutor theft noted that the defendant only mentioned the coercion to his attorney after he had been arrested and charged with the robbery. In his summation, the prosecutor argued emphatically that an innocent victim of coercion would have announced his predicament to the police immediately upon his arrest. The defendant’s conviction must be reversed and a new trial ordered. The law is clear that a suspect’s postarrest silence may not be used to impeach a defendant who testifies as to his innocence at trial (Doyle v Ohio, 426 US 610; People v Arce, 42 NY2d 179; People v Von Werne, 41 NY2d 584; see, also, People v Harding, 59 AD2d 897; People v Quiles, 59 AD2d 950; People v Bates, 58 AD2d 838). Since there is a reasonable possibility that such impeachment contributed to the defendant’s conviction it cannot be treated as harmless error (see People v Von Werne, supra). Damiani, J. P., Lazer and Rabin, JJ., concur.